Dutra opponents challenge commissioner's vote

PAUL PAYNE,

THE PRESS DEMOCRAT | May 29, 2009

Lawyers for the Petaluma River Council said Commissioner Don Bennett should have recused himself from the 3-2 vote last week because of his February column in the Petaluma Argus-Courier entitled, ?Hysteria over the asphalt plant,? expressing support for the project.

In a letter to the commission, the lawyers called the May 21 decision invalid and demanded a new hearing before an unbiased tribunal.

?Mr. Bennett clearly showed his bias before the vote,? said River Council founder and former Petaluma City Councilman David Keller. ?He should have recused himself.?

Bennett denied any impropriety, saying he wrote the column after the commission had initially voted in favor of the project as a whole, and that a review of the issue by county counsel had determined his subsequent vote last week was legally appropriate.

The Board of Supervisors sent the Dutra project back to the commission for consideration of a narrow aspect ? a general plan amendment involving noise from off-loading river barges, Bennett said.

Bennett said he didn?t know the commission would be considering the project again and he didn?t feel obligated to abstain from voting, in part because his views were already known.

?I thought we were done with this puppy,? said Bennett, a freelance columnist and Petaluma resident. ?I thought, I?ll put in my two bits worth. Then the supervisors kicked it back.?

The proposal has been a hot-button issue, pitting environmentalists against developers and others involved with road building.

Both sides have crowded into numerous public hearings. Supporters say the plant will provide a local source of construction materials while opponents say it it will spew odors and noise and pollute the nearby Petaluma River.

The project is to be discussed in a public forum today hosted by Assemblyman Jared Huffman, D-San Rafael.

Supervisors are expected to make a final decision June 9. In an earlier hearing, they gave the project preliminary approval.

However, Keller and his group said an alternate commissioner should be seated and the hearing on the matter should be held again.

Lawyers for his organization, Richard Drury and Michael Lozeau of Alameda, cited a state Court of Appeal decision in which bias was established, invalidating a decision, after a Southern California planning commissioner published a newspaper column attacking a project.

They said Bennett?s comments in the Feb. 4 Argus-Courier are ?far more extreme and far more biased.?

For example, they said, Bennett?s column said there was ?no evidence that the plant would pollute the air or stink up the place.? And they said Bennett dismissed critics, saying they behaved like developers were ?trying to install a defective Chernobyl-type nuclear power plant.?

Bennett ?has a right to say things, but as a public official he does not have a right to say things on matters in front of him,? Keller said.

?The question is, was he unbiased at time he voted,? Drury said. ?The evidence is clear he wasn?t.?

But David Hurst, chief deputy county counsel, said Bennett?s vote should stand. He said the appeal court case is based on different circumstances and does not apply.

When Bennett and other commissioners considered the barge noise issue, they were acting in a quasi-legislative capacity in considering a general plan amendment, Hurst said. In the Southern California case, commissioners were serving a quasi-judicial function on a permit application. Due process rights that Keller said were being violated by the op-ed piece don?t follow in broader, legislative matters, Hurst said.